THE High Court yesterday acquitted Citizens Coalition for Change (CCC) activists Joanah Mamombe and Cecilia Chimbiri, who were being accused of publishing falsehoods and fabricating their abduction by State security agents.
Mamombe and Chimbiri approached the High Court challenging
a lower court’s decision to allow their criminal matter to proceed to the
defence.
A Harare magistrate had ruled that the State had
established a prima facie case against the duo.
Chief magistrate Faith Mushure had dismissed their
application for discharge at the close of the State case.
However, Mamombe and Chimbiri approached the High Court for
review of Mushure’s determination.
High Court judge Justice Priscilla Munangati-Manongwa
upheld their application for review saying the lower court erred in dismissing
the duo’s application.
She said State witnesses’ evidence was irreconcilable and
the falsity of the alleged statement was simply absent.
She said the evidence of the State witnesses had been “discredited during cross-examination and had become so manifestly unreliable such that no reasonable court could safely convict on such evidence.”
Said Munangati-Manongwa: “The evidence of the State
witnesses is simply irreconcilable and the falsity of the alleged statement is
simply absent.
“The decision of the court is found to be grossly
unreasonable, irrational characterised by bias and malice and cannot be in
accordance with real and substantial justice.”
The judge said Mamombe and Chimbiri could not be pushed
into a defence case to supplement the inadequacies of the State case.
She added that to adopt such an approach would be
unconstitutional and against the principles that place the burden on the State
to prove its case and in this case, on a prima facie basis at the close of the
State case.
“It is not for the court to try and prop up a crumbling
case, a court has to acquit in the absence of evidence to support an essential
element of a charge, or where the evidence is manifestly unreliable that no
reasonable court can act on it,” Munangati-Manongwa said.
“The application has merit and, therefore, succeeds. In
that regard, the applicants are entitled to a discharge at the close of the
State case.
“The accused persons Joanah Mamombe and Cecilia Revai
Chimbiri be and are hereby found not guilty, discharged and acquitted at the
close of the State case. There is no order as to costs.”
She also ruled that the lower court underplayed the
contradictions in the State case, particularly the evidence of one Tapera
Christopher Kazembe, a spectrum manager at the Postal and Telecommunications
Regulatory Authority of Zimbabwe, and one Godfrey Mangezi.
“A judicial officer has to be impartial and where the
parties reasonably perceive that a judicial officer is not impartial, that
impacts upon the decision made. In reality, such an officer must recuse himself
or herself,” she ruled.
The judge said
the evidence of the State witnesses was so discredited during cross-examination
and had become so manifestly unreliable such that no reasonable court could
safely convict on such evidence. Newsday
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